JUDGMENT ( 1. ) THIS first appeal under section 96 of the Code of Civil Procedure has been preferred by the defendant against the judgment and decree passed in exercise of powers under Order 8 Rule 10 of the Code of Civil Procedure on 29-9-1997 by the Court of 4th Additional District Judge, Bhind in Civil Suit No. 71-A/1995. ( 2. ) BRIEFLY stated relevant facts are that the plaintiff/respondent instituted a suit for recovery of Rs. 79,810/- against the appellant and one Vinod Singh with allegations that defendant No. 1 obtained a loan of Rs. 47,664/- on 11-1-1980 from the plaintiff for the purchase of tracker vehicle. Defendant No. 2 also put his signatures on the loan application. Father of defendant No. 2 furnished guarantee for re-payment of loan and interest. On account of death of father, defendant No. 2 became liable as guarantor. Documents were got duly executed. Appellant also created equitable mortgage for security of loan. Repayment was not made by defendant No. 1 of loan amount and interest. Hence, plaintiff issued a demand notice, which was not responded to. Thus, suit for recovery of Rs. 79,810/- was instituted against the defendant/appellant as well as Vinod Singh. On account of death of Vinod Singh, his name was deleted under the order of the trial Court on 5-7-1997. Defendant No. 1, despite service of summons, remained absent. Ex-parte proceedings were drawn against him on 8-11-1995. Summons was issued to defendant No. 2, who was reported dead by the Process Server. Plaintiff-bank did not submit any application to substitute legal representatives for the deceased defendant No. 2, on the ground that particulars of legal representatives were not traceable. Accordingly, a prayer was made for deletion of name of defendant No. 2, which was accepted on 5-7-1997. Learned trial Judge, thereafter, fixed the case on 25-7-1997 for ex parte evidence of the plaintiff. Evidence of the plaintiff was not present on 25-7-1997. Again the case was adjourned to 29-9-1997 for plaintiffs ex parte evidence. On such date, learned trial Judge exercising powers under Order 8 Rule 10 of the Civil Procedure Code granted a decree in favour of plaintiff-bank against the defendant/appellant. Learned trial Judge further directed that in case if the payment is not made by the defendant/appellant within two months, plaintiff would be entitled to recover the amount from auction of the mortgaged property. Learned trial Judge further directed that in case if the payment is not made by the defendant/appellant within two months, plaintiff would be entitled to recover the amount from auction of the mortgaged property. Aggrieved by the same, the defendant has preferred the present appeal. ( 3. ) SHRI B. D. Jain, learned counsel appearing for the appellant and SHRI Ankur Mody, learned counsel appearing for the respondent/bank made their respective submissions, which have been considered in the light of the material on record as well as the law governing the situation. ( 4. ) CRUCIAL question in this case is whether the learned trial Judge, after proceeding for ex parte evidence on various dates, is justified in passing the judgment and decree in exercise of powers under Order 8 Rule 10 of the Code of Civil Procedure, subsequently in the absence of defendant/appellant. Order 8 Rule 10, Civil Procedure Code stood amended by virtue of Code of Civil Procedure Amendment Act, 2002. Prior to it, this provision, at the relevant time, was as under :? "R. 10. Procedure when party fails to present written statement called for by Court. ? Where any party from whom a written statement [is required under Rule 1 or Rule 9] fails to present the same within the time [permitted or fixed by the Court, as the case may be, the Court shall] pronounce judgment against him or make such order in relation to the suit as it thinks fit [and on the pronouncement of such judgment, a decree shall be drawn up.]" Although the word 'shall' is there in the provision, the same has been interpreted by DB of this Court in the case of Mathew Elenjical and others vs. Nagpur Roman Catholic Diocesan, 1977 MPLJ 811 as discretionary. It has been observed :? "This rule provides the consequence of non-filing of the written statement as required by Rule 1 or Rule 9. In the present case, we are not concerned with Rule 9. The amendment made in this rule leaves no doubt that it applies also to a case of non-filing of written statement as required by Rule 1. "This rule provides the consequence of non-filing of the written statement as required by Rule 1 or Rule 9. In the present case, we are not concerned with Rule 9. The amendment made in this rule leaves no doubt that it applies also to a case of non-filing of written statement as required by Rule 1. The rule, no doubt, says initially that the Court' shall pronounce judgment against the defendant on his failure to file the written statement required under Rule 1 or Rule 9 but it then proceeds to enable the Court to "make such order in relation to the suit as it thinks fit". The use of the word 'or', which is normally disjunctive, after "shall pronounce judgment against him" to separate it from the words "make such order in relation to the suit as it thinks fit" shows that the discretion of the Court has been retained in such a situation as well. Moreover, the latter expression would be redundant and meaningless if the Court had no option except to pronounce judgment against the defendant. There is no reason why the word 'or' should not be given its plain and ordinary meaning as a disjunctive to indicate that the two powers contained in the rule before and after that word were meant to lay down distinct and separate powers leaving the discretion to the Court to exercise one or the other depending on the facts of a particular case. The rule of harmonious construction also requires such a meaning to be given to Rule 10. As already noticed, on failure of the defendant to file the written statement required under Rule 1, the Court's power under sub-rule (2) of Rule 5 is attracted which gives a discretion to the Court to either pronounce a judgment in plaintiffs favour for mere non-filing of the written statement or not to do so, depending on the facts of a particular case. If Rule 10 is construed to mean that it leaves no discretion with the Court on defendant's failure to file a written statement under Rule 1 and the Court must necessarily pronounce judgment against the defendant for that reason alone, then sub-rule (2) of Rule 5 and Rule 10 also cannot be reconciled. If Rule 10 is construed to mean that it leaves no discretion with the Court on defendant's failure to file a written statement under Rule 1 and the Court must necessarily pronounce judgment against the defendant for that reason alone, then sub-rule (2) of Rule 5 and Rule 10 also cannot be reconciled. As already pointed out, the plain meaning of Rule 10 giving the word "or" occurring therein its ordinary meaning as a disjunctive instead of needlessly reading it as "and" leaves a discretion with the Court and on that construction there is no disharmony between these two provisions. For this reason also the plain meaning of the rule leaving a discretion with the Court must obviously be preferred." Prior to it, learned Single Judge of this Court has observed in the case of Balkishan vs. Ram Bharose and others, 1973 MPLJ 569 :? "2. The order of the learned trial Judge is patently erroneous. Rule 10 of Order 8, Civil Procedure Code must be read with Rule 9 of the said Order. The words "so required" in Rule 10 clearly refer to a written statement required by the Code under Rule 9 of Order 8, Civil Procedure Code. Rule 9 lays down that the Court may at any time require written statement or additional written statement from any of the parties and fix a time for presenting the same. The written statement contemplated by this rule is one that may be required by the Court after the written statement of the defendant is filed. Thus Order 8 Rule 10 is not attracted where the defendant fails to file his first written statement, even though he may have been given time to do so at his own request. 3. In Nagaratnam Pillai vs. Kamlathammal it was held that Rule 10 relates only to Rule 9 and cannot be taken to relate to Rule 1. The Court has, therefore, no jurisdiction to pronounce judgment under Rule 10 of Order 8 against the defendant who has failed to file his written statement. This decision was followed in Misc. (first) Appeal No. 76/58 decided on 31-8-1959. A similar view was expressed in Deokishandas vs. Union of India. The trial Court was, therefore, in error in proceedings to pronounce judgment under Order 8 Rule 10, Civil Procedure Code merely because the defendant has failed to file his written statement. This decision was followed in Misc. (first) Appeal No. 76/58 decided on 31-8-1959. A similar view was expressed in Deokishandas vs. Union of India. The trial Court was, therefore, in error in proceedings to pronounce judgment under Order 8 Rule 10, Civil Procedure Code merely because the defendant has failed to file his written statement. It is obvious that no direction to file a written statement was given to the defendant applicant in this case as required by Rule 9 of Order 8, Civil Procedure Code. The Court had no jurisdiction therefore, to proceed under Order 8, Rule 10, Civil Procedure Code. The impugned order is, therefore, liable to be set aside." ( 5. ) PERUSAL of the record of the trial Court shows that defendant No. 1 gave personal appearance on 12-1-1995, since Presiding Judge was on leave; case was fixed on 30-10-1995 for proper order. Again on 30-10-1995, Presiding Judge was on leave and the case was fixed on 8-11-1995 for proper order. On 8-11-1995, defendant No. 1 remained absent and consequently ex parte proceedings were drawn against him. Suit proceeded for effecting service of summons on defendant No. 2. On the adjourned date, it was reported by the Process Server that defendant No. 2 has died and the suit was adjourned to 12-1-1996 for taking appropriate steps for bringing legal representatives on record. On 12-1-1996, plaintiffs counsel informed the Court that defendant No. 2 was still alive. Accordingly, process fee was directed to be paid for service on him. On 7-3-1996 and on 25-4-1996 suit was adjourned because summons could not be issued to defendant No. 2 for want of process fee. Again on 16-7-1996, defendant No. 2 was reported dead and the case was adjourned on 13-8-1996 for taking appropriate steps with regard to legal representatives of deceased defendant No. 2. No such application was submitted on various future dates. On 5-7-1997, it was disclosed by the plaintiffs lawyer that whereabouts of legal representatives of defendant No. 2 could not be traced out and name of defendant No. 2 may be deleted. Accordingly, same was deleted and suit was fixed for plaintiffs ex parte evidence on 25-7-1997. Plaintiffs evidence was not present on 25-7-1997, 26-8- 1997 and 29-9-1997, despite case being fixed for ex parte evidence of plaintiff. Accordingly, same was deleted and suit was fixed for plaintiffs ex parte evidence on 25-7-1997. Plaintiffs evidence was not present on 25-7-1997, 26-8- 1997 and 29-9-1997, despite case being fixed for ex parte evidence of plaintiff. Since the written statement was not produced, learned trial Judge on 29-9-1997 granted a decree in favour of plaintiff for a sum of Rs. 79,810/- in exercise of powers under Order 8 Rule 10 Civil Procedure Code. From the aforesaid order-sheets, it is clear that the suit was not fixed for written statement on 8-11-1995, when ex parte proceedings were drawn. It was adjourned to this date on 30-10-1995, when the Presiding Judge was on leave. Thus, 8-11-1995 does not seem to be a date of hearing as the case was fixed by the Reader of the Court and not by the Presiding Judge. Consequently, it may also be argued that the learned trial Judge had no power to proceed ex parte on 8- 11-1995. ( 6. ) IT may be further seen that the defendant was not required by the Court to submit written statement, which is a condition precedent as held by this Court in the case of Balkishan (supra). Learned trial Judge rightly or wrongly had proceeded by drawing ex parte proceedings against the defendant/appellant on 8-11-1995. It was obligatory on the part of the learned trial Judge to record ex parte evidence and Order 8 Rule 10 Civil Procedure Code could not have been invoked at later stage. This has been made clear by the Apex Court in the case of Ramesh Chand Ardawatiya vs. Anil Panjwani, 2003(4) MPLJ (SC) 439 = AIR 2003 SC 2508 in the following passage:? "Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order VIII, Rule 10 of the Civil Procedure Code is attracted and the Courts acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX, Rule 5. Yet the trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'points for determination' and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence." ( 7. ) WHILE dealing with the scope of Order 8 Rule 10 Civil Procedure Code, Apex Court in the case of Balraj Taneja and another vs. Sunil Madan and another, AIR 1999 SC 3381 has observed :? "29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10, Civil Procedure Code. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8." Division Bench of this Court in the case of Mathew Elenjical and another vs. Nagpur Roman Catholic Diocesan, 1977 MPLJ 811 has observed :? "9. There is yet another incongruity which is saved by this construction. Obviously when defendant fails to appear and the suit proceeds ex parte, the plaintiff is required to make out a prima facie case by leading evidence and the suit cannot be decreed forthwith merely on account of the absence of the defendant. If Rule 10 were construed to leave no discretion with the Court making it incumbent that the suit must invariably be decreed on non-filing of written statement, it would result in giving greater benefit to a defendant who does not even care to remain present, as against a defendant who appears in Court and assigns good reason to the Court's satisfaction for grant of more time to file written statement. Such a result, no doubt, would be illogical. 10. Rule 10, therefore, in its ordinary meaning gives the Court a discretion either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such order in the suit as it thinks fit. This would mean that the Court may in its direction even grant more time to the defendant by adjourning the case. 10. Rule 10, therefore, in its ordinary meaning gives the Court a discretion either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such order in the suit as it thinks fit. This would mean that the Court may in its direction even grant more time to the defendant by adjourning the case. What really matters is that the Court is not obliged necessarily to pronounce judgment against a defendant merely because the defendant has failed to file the written statement within the time given by the Court. It follows that the Court must first decide the question whether a case for granting more time for filing the written statement is made out or not. It is only when the defendant's prayer for grant of more time for filing the written statement has been refused, the question of pronouncing judgment against him for non-filing of the written statement or making any other order in relation to the suit, such as for example, requiring proof of the facts otherwise than by such admission, can arise. Each case has obviously to be decided on its own facts." ( 8. ) FROM the aforesaid discussion, it is clear that Rule 10 of Order 8 Civil Procedure Code envisages an order, namely, pronouncement of judgment in presence of defendant, but in absence of his written statement. There is no compulsion on the Court to pronounce the judgment if the defendant, despite having been required to file it, fails to submit it on the date fixed by the Court for this purpose. If defendant remains absent, proper course for the Court is to proceed under Rule 9 of the Civil Procedure Code and to pronounce the judgment, after recording ex parte evidence. In the case in hand, learned trial Judge, after fixing the case for plaintiffs ex parte evidence on various dates, exercised the powers under Order 8 Rule 10 Civil Procedure Code and granted ex parte decree in plaintiffs favour, which is not contemplated under law. Consequently, the impugned judgment and decree are hereby set aside and the matter is remitted back to the trial Court to proceed further in the matter, in accordance with law. As a further note of caution, it is made clear that ex parte proceedings against defendant/appellant were drawn on 8-11-1995. Consequently, the impugned judgment and decree are hereby set aside and the matter is remitted back to the trial Court to proceed further in the matter, in accordance with law. As a further note of caution, it is made clear that ex parte proceedings against defendant/appellant were drawn on 8-11-1995. It was not the date of hearing, since the same was fixed by Reader of the Court in the absence of Presiding Judge. Therefore, in the fitness of case, learned trial Judge is also expected to grant an opportunity to defendant to submit written statement and to proceed thereafter further in the matter, in accordance with law. Parties are directed to appear before the trial Court on 10-10-2011. No order as to costs. C. C. as per rules. Order accordingly.